State v. Boster

• Decision Date: 15 February 1980
• Docket Number: Nos. 50607,50640,s. 50607
• Citation: 606 P.2d 1035,4 Kan.App.2d 355
• Parties: STATE of Kansas, Appellee, v. Jack D. BOSTER, Appellant. STATE of Kansas, Appellee, v. Ray A. WINTERS, Appellant.
• Court: Kansas Court of Appeals

Page 1035

606 P.2d 1035

4 Kan.App.2d 355

STATE of Kansas, Appellee, v. Jack D. BOSTER, Appellant.

STATE of Kansas, Appellee, v. Ray A. WINTERS, Appellant.

Nos. 50607, 50640.

Court of Appeals of Kansas.

Feb. 15, 1980.

Syllabus by the Court

1. An arrest without a warrant does not depend for its validity on whether or not a warrant issued later was valid, but upon whether there was probable cause for the arresting officer to make the arrest without a warrant.

2. Duplicitous returns of a search warrant will not invalidate a search warrant where the returns refer to the same items using different terms, so long as the items are identified as being the same and there is sufficient notice to the defendants as to what evidence was obtained in the search.

3. A trial court has the inherent authority to consolidate the trials of two defendants, even though they are charged in separate informations, if such consolidation is not prejudicial to either defendant.

4. An unloaded operable automatic pistol is a firearm under K.S.A. 21-4204.

Kenneth P. Rockhill, Eureka, for appellant Boster.

Ronald C. Myers, Eureka, for appellant Winters.

Donald H. Shoop, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before REES, P. J., and SPENCER and MEYER, JJ.

MEYER, Judge:

This is an appeal by the defendant, Jack D. Boster (Boster), from his conviction of possession of burglary tools in violation of K.S.A. 21-3717, and an appeal by the defendant, Roy A. Winters (Winters), from a conviction of the same crime, plus convictions for the unlawful possession of a firearm within five years after conviction of a felony (K.S.A. 21-4204(1)(b)), and for unlawful possession of a firearm by a narcotics addict (K.S.A. 21-4204(1)(a)).

The city marshal of Madison, Kansas, during the night of June 22, 1978, observed two men running down an alley behind the Pope Drug Store in that city. He gave pursuit in his patrol car but momentarily lost sight of them. He regained sight of the two men, one of whom ran off, while the other slowed to a walk. It developed these two men were Winters and Boster. Winters, the one who had slowed to a walk, was stopped by the marshal. He was frisked and found to have a pair of gloves and a flashlight. Winters advised the officer he had had car trouble and took the marshal back to the car, voluntarily opened the trunk, and showed him a flat tire. The marshal also observed a crowbar and "paraphernalia" in the trunk. At that time the marshal arrested Winters and called the Greenwood County sheriff to aid in the search for the other defendant. The sheriff looked behind Pope Drug Store and noticed a screen had been cut and that the latch on the screen had been opened. The sheriff then went back to the Winters vehicle and discovered Boster lying in the back seat. He thereupon took Boster into custody. A search warrant was obtained the following day and a search of the car revealed locksmith tools, certain drug paraphernalia, and other equipment.

Winters was charged with possession of burglary tools, attempted burglary, possession of a firearm within five years of conviction of a felony, and possession of a firearm by a narcotics addict.

Boster was charged in a separate information with possession of burglary tools and attempted burglary.

The State moved for consolidation of the two cases for trial and the court granted consolidation over the objection of the defendants. The jury acquitted both defendants of attempted burglary but convicted each of them on all other counts charged.

Defendants' first claimed error is that the district court erred in holding that the affidavit attached to the complaint in this matter established probable cause and was sufficient to authorize the issuance of a warrant for arrest.

They cite Wilbanks v. State, 224 Kan. 66, 579 P.2d 132 (1978), for the proposition that in order for an arrest warrant to be valid there must be sufficient information from which a neutral and detached magistrate could determine probable cause. While we feel the affidavit and warrant contained sufficient information within themselves to determine probable cause, it is noted that both defendants were arrested without a warrant and that the warrant complained of was issued following those arrests. The requirements for an arrest warrant in the Fourth Amendment and Article 15 of the Kansas Bill of Rights go to the legality of the arrest. See Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); and Whitely v. Warden, 401 U.S. 560, 28 L.Ed.2d 306, 91 S.Ct. 1031 (1971). The legality of the arrests in the instant case, therefore, depends not upon whether the warrant was proper, but upon whether there was probable cause for the arresting officers to make the arrests without a warrant.

In State v. Curtis, 217 Kan. 717, 721, 538 P.2d 1383, 1388 (1975), the Court states:

"The basic question presented is whether Officer Parks had probable cause to arrest defendant. K.S.A. 22-2401(C )(1) provides, Inter alia, that a law enforcement officer may arrest a person when he has probable cause to believe that the person has committed a felony. The provisions of the statute referred to simply codify the existing case law of this jurisdiction authorizing the warrantless arrest for a felony if the officer has probable cause."

We conclude that under the facts of this case there was probable cause for the warrantless arrests and that the arrests were valid. Moreover, even if the warrant was invalid and the arresting officer lacked probable cause for arrest, the defendants have shown no substantial rights which were prejudiced as a direct result of unlawful arrest.

"(J)urisdiction of a court to try a person accused of a crime is not divested by the fact he may have been unlawfully arrested." State v. Addington, 205 Kan. 640, 644, 472 P.2d 225, 229 (1970).

Further, "(u)nless a defendant's substantial rights are prejudiced as a direct result of an unlawful arrest, such as the use of evidence seized at the time, his arrest will not vitiate his subsequent conviction." 205 Kan. at 645, 472 P.2d at 229. See also State v. Stephenson, 217 Kan. 169, Syl. P 1, 535 P.2d 940 (1975).

Winters complains that the court erred in failing to sustain his motion for suppression of the evidence because the affidavit for the search warrant was insufficient to show probable cause and because of defective and duplicitous returns. We are not persuaded by either of these arguments.

The affidavit for search warrant contained sufficient facts from which the magistrate could conclude there was probable cause to believe that the automobile contained contraband. It showed from whom and by what means the affiant obtained his information and what that information consisted of. The rule involving search warrants is set out in State v. Hart, 200 Kan. 153, 162, 434 P.2d 999, 1007 (1967), wherein it is stated:

"(B)efore a search warrant may validly be issued, there must have been placed before the issuing magistrate sufficient facts to enable him to make an intelligent and independent determination that probable cause exists; that bald conclusions or mere affirmations of belief or suspicion are not enough; and while an affidavit may be based on hearsay, there must be sufficient affirmative allegations as to the affiant's personal knowledge or his knowledge concerning his informant, or as to the informant's personal knowledge of the things about which the informant spoke, to provide a rational basis upon which the magistrate can make a judicious determination of probable cause."

See also State v. Sanders, 222 Kan. 189, 192, 563 P.2d 461 (1977).

As to the adequacy of the return of the search warrant and of the duplicitous nature of it, K.S.A. 22-2511 states:

"No search warrant shall be quashed or evidence suppressed because of technical irregularities not affecting the substantial rights of the accused."

There was testimony to the effect that a return was left in the vehicle and a copy of the search warrant was left with Winters at the county jail. Apparently the trial court believed this testimony. As to the duplicitous returns complained of by defendants, we note the only different between the returns is that the same items were referred to by different names. The items were, however, clearly identifiable and the returns, in effect, said the same thing. Further, there is no indication that defendants were surprised in any way by the admission of the seized evidence and the trial court made a specific finding that no prejudice resulted to their rights.

Defendants claim error in the consolidation of their cases. This claim of error also lacks merit. The court, in State v. Coe, 223 Kan. 153, 157-158, 574 P.2d 929, 934-935 (1977), states:

"Although 22-3204, Supra, is silent concerning the power of the trial court to consolidate trials on the motion of one or more of the defendants, the trial court has such inherent authority. The underlying purpose of the statute is to provide the defendant a fair trial without undue delay. The trial court is vested with broad discretion to achieve this goal."

In State v. Coe, the trial court denied defendants a joint trial, whereas in the instant case the trial court ordered the consolidation over the objection of the defendants. We deem State v. Coe to be sufficient authority for the trial court to consolidate the trial of the two defendants herein. We conclude, also, that same is a matter discretionary with the trial court, and will not be disturbed absent abuse of discretion. In State v. Rueckert, 221 Kan. 727, 561 P.2d 850 (1977), defendants were jointly charged and it was held by the court that: "When two or more defendants are jointly charged with a crime the granting of a separate trial for any one defendant lies within the sound discretion of the trial court. (K.S.A. 22-3204)." 221 Kan. 727, Syl. P 2, 561 P.2d 850, 853. The Rueckert court states: "A defendant does not...